Michael LeRoy is an expert in labor law and labor relations at the University of Illinois Urbana-Champaign. LeRoy, who advised the Council of Economic Advisors for President George W. Bush during the last national emergency labor dispute in October 2001, spoke with News Bureau business and law editor Phil Ciciora about the likelihood of President Biden intervening in a potential strike by the Teamsters union that represents UPS workers.
A strike by UPS workers could be on the horizon. Given how important UPS is to the national economy, should President Biden intervene?
President Biden can get involved three ways. First, he can use the bully pulpit of his office to ask the parties to work hard to settle. Second, the National Labor Relations Board can seek an injunction to stop a strike response, such as an employer using replacement workers, though the president cannot directly order this outcome.
But the third option is a real concern to the Teamsters: President Biden has power under the Taft-Hartley Act to go to court and stop the strike for 80 days.
So President Biden can intervene – the bigger question is should he intervene. Well, the Teamsters union president has publicly stated that he hopes the president won’t put his thumb on the scale in this dispute. President Biden would likely alienate a key constituency ahead of the 2024 presidential cycle if he used this power, and the president probably doesn’t want to antagonize a key constituency ahead of what’s sure to be a bruising reelection campaign.
Why would the union object to this use of presidential power?
The union can get maximum leverage by disrupting UPS’ business, and therefore can extract maximum gains in pay, benefits, working conditions and job security. Simple as that.
Is that taking advantage of bargaining at the expense of the public? Yes, it is. However, for the past 30 years or so, employers have used the same collective bargaining law to extract painful concessions from unions, including the Teamsters. So this tactic isn’t anything new.
How does this presidential power under the Taft-Hartley Act work?
The president has the power to declare a national emergency strike. But first, he has to convene a board of inquiry – a group of three experts who assess the impact of a work stoppage on the nation’s economy.
My research has shown that these boards deliver a finding sought by the president 95% of the time. At that point, the attorney general sues in court to halt a strike. And my research shows that this effort by the attorney general succeeds more than 90% of the time.
What’s the effect of a national emergency injunction?
It starts with an 80-day cooling-off period between the two parties. Usually, the negotiators are brought to the White House for bargaining and a photo op. This is done to focus public attention on the bargainers and basically twist their arms to compromise.
For example, in 1994, President Clinton appointed a special mediator in the baseball strike, complete with a photo-op moment, but stopped short of invoking this injunction law. This example could offer President Biden a middle-ground approach.
Does this process work as intended?
Strikes and lockouts settle almost every time before the 80-day period expires. And just as the law intends, it induces the parties to make compromises that would not have happened without government intervention. This is why the Teamsters don’t want President Biden to intervene. They want maximum leverage on their side.
What do you think is the likelihood that President Biden will use his national emergency powers?
My educated guess is that he won’t flex this particular muscle because the nation has alternatives to UPS. We can ship via FedEx, the U.S. Postal Service, Amazon and smaller couriers. When UPS struck in 1997, it was the largest strike in history and lasted for 15 days – but President Clinton did not intervene. I think that history is relevant for the Biden administration.
When I researched these strikes, they usually involved West Coast or East Coast dock workers who were striking or being locked out. When 20-30 ports are entirely shut down – something we almost experienced this past year – you have the makings of a real national emergency because the economy is severely disrupted.
There is one more key factor. Under a different labor law, the Railway Labor Act, President Biden used his power to pressure railroad workers last year to accept a settlement. Labor was openly unhappy with this use of power. Since the clock has started ticking on the 2024 presidential election, I’m sure that all parties are well aware of where they stand on the issues. Again, the president probably doesn’t want this particular battle ahead of 2024.